Withstanding the test of time, obscenity has never enjoyed Constitutional protection. No holds barred, this stuff is illegal. This is stuff simply beyond the pale of anything that the First Amendment was designed to protect.
Well this might make some uneasy. How can one be assured that one's art or literature or informational website will not be judged obscene? What is obscene? The Supreme Court set forth how to determine this in something known as the Miller test.
The test for obscenity is
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
This is an extreme test. The key in many ways is the final element. The work taken as a whole must lack serious literary, artistic, political or scientific value. Thus a text book on sexual health would immediately fail this test. It is not obscene; it has scientific value. Likewise Shakespeare would fail the test; it has literary value. Federal courts have found the phrase, "Fuck the Draft" written on the back of a denim jacket worn inside of a court house during the Vietnam war was not obscene; this was a political statement.[Cohen] Further, one section of a work taken out of context does not make the work obscene. One could not take one section out of the Hindu Kamasutra and label it obscene; the work must be viewed as a whole. The courts have made clear that when they are talking obscenity, they are talking smut for smut sake.
Obscenity is illegal under 18 U.S.C. §§ 1460-1466. It also remains illegal under the CDA. 47 U.S.C. § 223(a) & (b).
